Fair notice still the rule for contributory case
4 Jan 07
Appeal court rejects contributory negligence argument on points not put to pursuer
The rule of fair notice continues to apply to a plea of contributory negligence in an action of damages brought under the simplified procedure in the Court of Session rules.
Three judges in the Extra Division have rejected an appeal by W & J R Watson against a decision by Lord Macphail to award £5,150 in damages to Stewart McGowan without reduction for contributory negligence.
Mr McGowan lost part of the middle finger of his left hand when it came into contact with the blade of a circular saw on the defenders' premises. A piece of wood he was cutting had jammed and stopped the blade, and as he forced it downwards again the saw had restarted and his finger came in contact with it.
Lord Macphail held Watsons in breach of the Provision and Use of Work Equipment Regulations by failing to ensure that measures were taken to prevent access to a dangerous part of machinery. He rejected a case of contributory negligence based on failing to use clamps to hold the wood, because no clamps were available.
Watsons' argument before the appeal court was based on Lord Macphail's conclusion that Mr McGowan's finger came into contact with the blade as a result of "some aberration or lapse in attention, or inadvertence on his part". While it had not been put to Mr McGowan in cross examination that he had failed to take reasonable care for his own safety, his own account in evidence was, they said, "redolent of contributory negligence".
No opportunity
However Lord Nimmo Smith, giving the judgment of the court, said that if defenders chose to give notice of a specific case of contributory negligence, as was done here in relation to the use of clamps, they might be precluded from seeking to argue for a finding of contributory negligence on any other ground because they had not given fair notice of it.
Mr McGowan, he added, had had no opportunity to contradict any suggestion that there had been a lack of reasonable care on his part in any other respect. "Indeed, it does not appear from the Lord Ordinary's opinion that he was invited to make a finding of contributory negligence on any other ground. In our opinion, he had no alternative but to dispose of the matter as he did."
Lord Nimmo Smith also pointed out that previous cases had ruled that inattention or inadvertence were not enough for a finding of contributory negligence on the part of an employee injured as a result of a breach by employers of an absolute statutory duty such as that imposed by the regulations in this case. "The reason for this is that statutory provisions of this kind are intended to protect employees against [among other things] accidents caused by inattention or inadvertence."
The court criticised the fact that the appeal went ahead when such a small sum was at stake. The opinion can be read at http://www.scotcourts.gov.uk/opinions/2006CSIH62.html .